Determining whether a work created by an employee is an employee work for copyright purposes has serious practical consequences. The use of the employer’s equipment or materials doesn’t necessarily mean that a work is an employee work. Similarly, the employee’s use of his own equipment or materials doesn’t automatically mean that the work is not an employee work.

Warsaw Court of Appeal judgment of 20 June 2018 (case no. I ACa 18/17)

In the case that reached the court’s docket, the essence of the dispute was:

• Whether the fact that the employee used his own equipment to create a work means that the resulting work is no longer an employee work, and
• Whether the duty to create the work should be expressly stated, e.g. in the employment contract.

The plaintiff was employed as a curator at a museum under an employment contract. His duties included directing, conducting and planning substantive, scholarly and organisational work, initiation and cooperation in seeking and gathering collections, and promotion of collections and the museum’s activity through preparation of exhibitions. He prepared the scenario for an exhibition on hunting architecture and gathered objects for the exhibition, wrote texts for the exhibition and prepared the exhibits. As part of his work, the plaintiff organised an exhibition displaying, among other things, photographs which the employee himself had taken using his own camera as well as a device belonging to the museum. After termination of the employment contract, the plaintiff sued the museum, alleging that it was using photographs authored by him without his consent or a relevant agreement.

Employee work

The rule is that the economic copyright to a work is held by the author (Art. 8(1) of the Polish Act on Copyright and Related Rights). However, according to Art. 12(1) of the act, unless otherwise provided by the act or an employment contract, an employer whose employee has created a work as a result of performance of his duties arising out of the employment relationship acquires the economic copyright upon acceptance of the work, within the bounds indicated by the aims of the employment contract and the parties’ mutual intent.

An employee work is one created as a result of performance of employment duties. It is recognised that the duty to create works for the employer must be included in the employment contract. The source of the duty to perform creative work may also be found, for example, in work rules, a collective agreement, or individual instructions by the superior. The mere use of devices or materials of the employer, or preparation of the work during working hours , does not provide a sufficient basis for classifying a work as an employee work (Katowice Court of Appeal judgment of 4 October 2011, case no. V ACa 422/11).

Thus, in considering this case, the regional court and the court of appeal had to determine whether the plaintiff’s photographs, taken using his own equipment and the museum’s equipment and used by the museum for the exhibition, could be treated as employee works.

Scope of employment duties

The courts had no doubt that creation of the photographs presented at the exhibition lay within the scope of the plaintiff’s employment duties. This classification was dictated by the scope of the plaintiff’s duties, the position he held, and the fact that the photographs were created with the aim of realising employment duties related to preparation of exhibitions. As pointed out by the regional court, and affirmed by the court of appeal, as the scope of the plaintiff’s duties included collecting materials for exhibitions, it should be found that this included taking photographs of items of interest from the perspective of the defendant’s activity.

As the court of appeal held, “Classification of a work as an employee work does not require that the employee was subject to an expressly stated duty (in the employment contract or other acts constituting a source of labour law, such as the description of his position) to create the disputed work, or even that the employee be expressly obligated to perform creative activity. What is relevant is a determination of whether the activities resulting in creation of the work fell within the scope of his employment duties.”

Summary

Classification of a work as an employee work is determined by the scope of employment duties, even if the employee is not expressly required to perform creative activity. It is irrelevant whether the employee used his own resources or the employer’s resources to create the work. In this judgment the courts of both instances stressed the importance of the scope of employment duties for recognition of an employee work. Thus if employers want to ensure that works created on the job are treated as employee works, they should take care to define the employee’s duties to include creative work.

Monika A. Górska